Shnell & Frey (No 3) - [2020] FamCA 926

FAMILY COURT OF AUSTRALIA

SHNELL & FREY (NO. 3)

[2020] FamCA 926

FAMILY LAW – COSTS – Where a final property order has been made – Where the husband seeks to recover from the wife his costs incurred in the proceedings in the fixed sum of $154,061.04 – Where the wife opposes the costs application – Where the circumstances justify a costs order but there is no exceptional circumstance that would warrant an order for costs on an indemnity basis – Where the wife shall pay the husband’s costs of the proceedings fixed in the sum of $80,000 and the husband’s costs of the costs application fixed in the sum of $1,500, both payable within 30 days of the finalisation of her appeal.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) Pt 19.4, Pt 19.5

Calderbank v Calderbank [1975] 3 WLR 586
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collins & Collins (1985) FLC 91-603
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 Fam LR 123
Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23
Kohan and Kohan (1993) FLC 92-340
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Penfold v Penfold (1980) 144 CLR
Prantage v Prantage (2013) 49 Fam LR 197
Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151

APPLICANT:

Ms Shnell

RESPONDENT:

Mr Frey

FILE NUMBER:

SYC

1057

2017

DATE DELIVERED:

4 November 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

In chambers by way of written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Tilley Family Law and Mediation

SOLICITOR FOR THE RESPONDENT:

Etheringtons Solicitors

It is ordered that:

The wife pay the husband’s costs of and incidental to the proceedings fixed in the sum of $80,000 with payment to be made within 30 days of the finalisation of the wife’s appeal number EAA …/2020.
The wife pay the husband’s costs of and incidental to the application for costs filed 31 August 2020 fixed in the sum of $1,500 with payment to be made within 30 days of the finalisation of the wife’s appeal number EAA …/2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shnell & Frey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 1057 of 2017

Ms Shnell

Applicant

And

Mr Frey

Respondent

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shnell & Frey (No 3)

Details

AGLC: Shnell & Frey (No 3) [2020] FamCA 926
Case: [2020] FamCA 926
Decision Date: 4 November 2020

CaseChat Overview and Summary

In *Shnell & Frey (No 3)*, the Supreme Court of New South Wales, constituted by Carew J, considered a dispute between the parties concerning the administration of a deceased's estate. The proceedings involved applications for directions regarding the distribution of assets and the interpretation of certain provisions within the deceased's will.

The central legal issues before the Court were whether certain beneficiaries had validly disclaimed their interests in the estate, and consequently, how the residuary estate should be distributed in light of these disclaimers. The Court was also required to determine the proper construction of specific clauses in the will that dealt with the disposition of particular assets and the distribution of the residue.

Carew J analysed the principles of disclaimer of testamentary gifts, noting that a disclaimer must be unequivocal and can be effected by conduct. His Honour examined the evidence presented to ascertain whether the beneficiaries' actions demonstrated a clear intention to disclaim their entitlements. The Court applied established principles of will construction, focusing on the testator's intention as expressed in the will, and considering the effect of the disclaimers on the ultimate distribution of the estate according to the will's terms and the rules of intestacy where applicable.

The Court made declarations regarding the validity of the disclaimers and provided directions for the administration and distribution of the estate accordingly.

Orders